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Friday, 14 August 2015

The IPKat is delighted to receive a contribution penned by long-time Katfriend Professor Graham Dutfield (Professor of International Governance at Leeds University) on the subject of Traditional Knowledge. There has been much discussion on this blog pertaining to this thorny issue, to which Graham has been a regular and welcome contributor of comments. Graham, however, will set out some issues in more detail...

Traditional knowledge has provoked some rich contributions
to this blog in recent weeks. Mira Sundara Rajan’s eloquent piece added a much needed anthropological
perspective while the Katonomist
provided a concise and valuable economic take on the matter. Darren Smyth has
demonstrated that India’s Traditional Knowledge Digital Library has been rather
ineffectual in achieving its official purpose of preventing patent-based
biopiracy – as I had suspected.

The TKDL which brings together published information on
Indian medicinal plants and their uses in the various classical Indian health
traditions is a potentially valuable resource for health researchers, medical
practitioners and for natural product companies especially in India where there
is a high demand and scientific interest. Why the government aims to use it
solely for the purpose of aiding patent prior art searches and oppositions is a
mystery to me. Most of the information is historical. It is not held and
maintained specifically by any small group or community. It belongs to nobody –
not even the modern republic of India. Ayurveda is not practiced solely in that
country. Unani Tibb is largely of Greek origin. One could go on. To be fair,
the managers of the TKDL wisely chose not to record unpublished TK from minority
populations whose knowledge may be highly specific and localised.

As someone who has been interested in this issue for over
two decades, probably the biggest problem of “misappropriation” has not been
the taking or misuse of TK and cultural expressions by companies – though this
does certainly happen – but the hijacking of the biopiracy complaint by
governments. It is governments that impose unworkable regulatory regimes on
access and benefit sharing (ABS). And it is they who take state sovereignty to extreme
lengths so that not only are undiscovered genes, metabolites, and plant and
microbial species national property but so – at least implicitly – is
associated traditional knowledge. One manifestation of this is the way they
conflate biopiracy hoaxes such as neem and turmeric with more genuine cases of
exploitation as can be found in Daniel Robinson’s book Confronting Biopiracy.

WIPO has of course been working on protecting TK for quite
some time, though negotiations on a legal instrument seem to have hit the
buffers. In terms of defensive protection it is the right forum. But it is
certainly not the place to develop a legal regime of positive protection for TK
which should in any case be done at the national level, if at all. Middle aged
urban male diplomats are simply unqualified and have other agendas than
genuinely looking out – in Geneva of all places – for their most impoverished
and vulnerable people back home. Elsewhere there has tended to be a patronising
attitude according to which indigenous peoples are said to be too noble to
claim property rights over their knowledge and resources. If true, what would
be wrong in helping oneself to it?

Reality is very different. Indigenous groups seem generally
to have their own rules governing how their knowledge, innovations and
practices are used by themselves and by others. One aspect of this is a duty on
specialist knowledge holders, such as healers, to ensure that they are not misused
by others. Intellectual property rights may in fact sometimes serve their
interests without necessarily conflicting with their norms and values. I have
recently been working with International Institute for Environment and Development and with an organisation in Peru
to find a way to brand certain goods produced by indigenous groups there and
elsewhere, starting with the Potato Park which supports this initiative. The Park is an organisation comprising
five Quechua communities who cultivate and conserve over 1,000 varieties of
potatoes and in doing so provide a service for all humanity. We underestimate
the importance of agrobiodiversity at our peril. The Potato Park communities
are marketing their goods in local markets, using a mark they designed
themselves, and sharing some of the proceeds. They are also applying their own
customary law principles to all exchanges of plant material and other natural
products including with the International Potato Centre (one of the CGIAR international agricultural research centres).
Perhaps this is a way forward – one that is not reliant on the outcomes (if any)
of drawn-out debates in faraway Geneva. But this does require a certain degree
of local autonomy that many national governments are unwilling to concede or at
least facilitate.

Intellectual property claims by businesses that relate to
their plants and knowledge can seem coldly impersonal and brutal, if not
illegal under their own laws. This is especially so with sacred or culturally
significant plants and is the case even with patents disclosing genuine novelty
and inventiveness. But this is not as big a problem as the aforementioned
“nationalisation” of TK and genetic resources by governments which negates the
specific and more justified demands of indigenous peoples over knowledge, local
resources and territories (“biocultural heritage”). In fact the three are not
really separable – hence the point that this is not primarily an intellectual
property issue, or one that can be dealt with adequately by the Nagoya Protocol
and the numerous other examples of regulatory overkill which serve nobody’s
interests.

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